Judicial Examination (Paper 1) Concept Overview of International Economic Law Tutoring Materials (Electronic Version)

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Chapter 1 Introduction

1. The concept and scope of adjustment of international economic law

International economic law is the general term for the legal norms that regulate international economic relations. International economic relations can be divided into broad and narrow senses. International economic relations in the narrow sense only refer to economic relations between countries and international organizations. The subjects of international economic relations in the narrow sense are generally limited to countries and international organizations. International economic relations in the broad sense include not only international economic relations in the narrow sense, but also economic relations between individuals, legal persons, countries, and international organizations in different countries. Some people also call them transnational economic relations. International economic law regulates international economic relations in a broad sense.

The objects adjusted by international economic law include both economic relations under international law and foreign-related economic relations under domestic law; there are both vertical relations and horizontal relations; there are both public law relations and There is a private law relationship. International economic law is a multi-category, interdisciplinary, comprehensive and independent legal discipline. Specifically considering the nature of the legal relationship, the scope of adjustments includes:

1. Legal norms and systems related to international trade in goods, including international goods sales contracts, international goods transportation and insurance, international payment and Legal norms and systems related to settlement and import and export legal controls.

2. Legal systems and legal norms related to international trade in services, including commercial services, communication services, construction services, sales services, educational services, environmental services, financial services, health and social services, culture and Legal norms and systems related to sports services, transportation services, etc.

3. Legal norms and systems related to international investment, including legal norms and systems related to capital export, capital import, investment protection, etc.

4. Legal norms and systems related to international intellectual property protection, including legal norms and systems related to the international protection of industrial property rights, international protection of copyrights, and international license trade.

5. Legal norms and systems related to international currency and finance, including those related to the control of international currency, transnational banks, international loans, international securities, international financing guarantees, and transnational banks.

6. Legal norms and systems related to international taxation, including legal norms and systems related to international tax jurisdiction, international double taxation and international overlapping taxation, international tax evasion and tax avoidance, etc.

7. Various legal norms and systems related to international economic organizations.

2. The subject of international economic law

The subject of international economic law refers to the legal personality who can exercise rights and assume obligations in international economic relations. The subjects of international economic law include natural persons, legal persons, countries and international organizations.

1. Natural person. International treaties and laws of various countries generally stipulate that natural persons, as subjects of international economic law, should not only have general civil rights capacity and behavioral capacity, but also have the rights, capacity or qualifications to engage in international economic exchanges. The laws of some countries restrict their natural persons from engaging in certain international economic exchange activities.

2. Legal person. As the subject of international economic law, legal persons should have the rights and capacity to engage in international economic activities. The legal person's capacity of conduct refers to the legal person's ability to obtain civil rights and assume civil obligations through its own actions on its own initiative. According to Article 14 of the Law of the People's Republic of China on the Application of Laws in Foreign-Related Civil Relations, the law of the place of registration shall apply to matters such as the civil rights capacity, civil conduct capacity, organizational structure, shareholder rights and obligations of legal persons and their branches. Paragraph 2 stipulates that if the principal place of business of a legal person is inconsistent with the place of registration, the law of the principal place of business may be applied. According to the provisions of Article 184 of the 1988 "Mintong Opinions": "...the civil activities carried out by foreign legal persons within the territory of our country must comply with the legal provisions of our country." Unless otherwise provided in the treaty, all countries have the right to stipulate that foreign legal entities The rights enjoyed by legal persons and the scope of activities carried out in the country. Legal persons occupy a very important position in international economic relations. Most international economic exchanges involve legal persons. In particular, multinational companies play a more prominent role in international economic exchanges.

3. Country. States are the main makers of international economic law. In international economic law, a country as a sovereign has the ability to independently participate in international relations and directly assume the rights and obligations of international law. On the one hand, a country has the right to conclude international economic treaties and agreements with other countries or international organizations, the right to participate in the activities of international economic organizations, and the right to exercise permanent sovereignty over its own natural resources and economic activities. On the other hand, a country can directly participate in international economic and trade activities within a certain scope, and can enter into economic contracts with legal persons or natural persons of another country. For example, the state can enter into concession agreements with foreign private investors. As a subject of international economic law, a country has a special status, that is, the country and its property enjoy immunity.

4. International economic organizations. International economic organizations are new subjects of international economic relations that emerged in large numbers after the Second World War. International economic organizations must have certain legal personality in order to exercise rights and assume obligations as subjects of international economic law and carry out activities within the scope of their functions. The legal personality of an international economic organization depends on the provisions of the basic documents of each member state establishing the economic organization. International economic organizations enjoy certain privileges and immunities, which come from the authorization of member states.

3. The origin of international economic law

1. International economic treaties. An international economic treaty is a written agreement reached between countries and international economic organizations to determine the rights and obligations between them. International economic treaties are an important source of international economic law. Treaties are divided into bilateral treaties and multilateral treaties. Multilateral international economic treaties are the most important source of international economic law, and their contents involve various fields such as international trade, international investment, international finance, and international protection of intellectual property rights.

2. International business practices. International business practices are unwritten rules formed through repeated use in long-term international economic exchanges. In order to make unwritten international business practices easier to grasp and search, some private international organizations or associations have organized and compiled unwritten practices, such as the "Incoterms" and the "Uniform Customs and Practice for Documentary Credits" wait. International business practices are arbitrary norms that are binding on the parties only if they expressly choose to apply them. The parties may also supplement and modify the business practices of their choice.

3. Normative resolutions of the United Nations General Assembly. According to traditional international law, international organizations have no legislative power. Generally speaking, resolutions passed by international organizations only have the effect of recommendations and do not have mandatory force on their member states. However, with the development of international practice, the theoretical community has tended to affirm the legally binding force of the General Assembly resolutions. In particular, some UN General Assembly resolutions are intended to declare the principles and norms of international law and should have legal effect, and some resolutions have no legal effect in international practice. It has gradually been accepted and has become a norm that countries should abide by in international economic exchanges.

4. Domestic legislation. Domestic legislation, as the source of international economic law, refers to the legal normative documents formulated by various countries to adjust foreign-related economic relations, such as a country's foreign trade law, foreign exchange control law, contract law, maritime law, bill law, customs law, etc. Countries mainly adopt the unified system and the divided system in regulating their domestic legislation on foreign-related economic relations. The former refers to the enactment of domestic economic legislation that applies to both domestic economic relations and foreign-related economic relations. The latter refers to the formulation of different laws to adjust domestic and foreign economic relations.

5. Judicial interpretation. Judicial interpretation refers to the interpretation by the country's highest judicial authority on specific application of law in judicial practice in accordance with the authorization of the law. Since such interpretations are binding on the trial activities of other courts, they have actually become a source of international economic law in our country. For example, the 2005 Supreme People's Court's "Regulations on Several Issues Concerning the Trial of Letter of Credit Dispute Cases" is an important basis for Chinese courts to handle cases involving letters of credit.

In addition, domestic jurisprudence is an important source of domestic law for international economic law in common law countries, but jurisprudence is not a source of law in our country.

4. Basic Principles of International Economic Law

The basic principles of international economic law refer to principles that are recognized by the international community and have universal guiding significance for all fields of international economic law. .

1. The principle of national economic sovereignty. The principle of national economic sovereignty is the concrete embodiment of the principle of national sovereignty in the field of international economic law. It forms the basis of the new international economic order. National economic sovereignty is reflected in the country's ownership, use and disposal rights of all its wealth and resources, as well as its control over economic activities. In terms of content, this principle includes the state’s permanent sovereignty over all natural resources within its territory, the state’s right to manage and supervise foreign investors and their activities, and the state’s right to decide on measures to nationalize or expropriate foreign assets within its territory, etc. .

2. The principle of equality and mutual benefit. The principle of equality and mutual benefit means that all countries are equal under the law, and countries should participate in economic activities with equal qualifications and share the results equally. Equality and mutual benefit are the basic principles that should be observed in international economic exchanges. In international economic exchanges, all countries, regardless of their size, strength or weakness, are equal in legal status. Equality is substantive equality, not just formal equality. Mutual benefit means that one cannot only seek the interests of one party and ignore the interests of other parties. Equality and mutual benefit are an indivisible whole. Most-favored-nation treatment is a typical example of the principle of equality and mutual benefit.

3. Principles of international cooperation and development. The principle of international cooperation and development means that developing countries should gradually narrow and eliminate the gap between poor countries and rich countries through national economic development. Developed countries should cooperate with developing countries in the fields of economy, society, culture, science and technology to promote Economic progress and social development of various countries, especially developing countries. According to the provisions of the Charter of the United Nations, international cooperation to pursue development is the unanimous goal and common obligation of all countries. This principle first emphasizes the recognition and respect of the development rights of developing countries. The prosperity of developed countries is linked to the development of developing countries.

On this basis, in order to achieve common development, cooperation between countries in economic, social and other aspects should be strengthened, including of course cooperation between developed and developing countries, but also cooperation between developing countries.